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2013 Supreme(HP) 792
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Before
The Hon’ble Mr. Justice Kuldip Singh, Judge.
Cr.MP No.179 of 2013 in Cr.MMO No.8 of 2012 and Cr.MMO No.68 of 2012-G. Date of decision: 29.10.2013.
Ram Krishan. Versus Ramesh Kumar
For the Petitioner:Mr.G.D.Verma, Senior Advocate with Mr.B.C.Verma, Advocate, for applicant in Cr.MP No.179 of 2013 in Cr.MMO No.8 of 2012 and for the petitioner in Cr.MMO No.68 of 2012-G.
For the Respondent:Mr.Tarlok Chauhan, Advocate with Mr.Vijay Chaudhary, Advocate, for non-applicant in Cr.MP No.179 of 2013 in Cr.MMO No.8 of 2012 and for respondent in Cr.MMO No.68 of 2012-G.
The judgment emphasizes the limited scope of altering or reviewing judgments and the constraints of Section 91 of the Code in summoning and producing documents.
Headnote:
Negotiable Instruments Act - Recall of Orders - Section 138, Section 142 of the Negotiable Instruments Act, 1881, Section 311 of the Code of Criminal Procedure, 1973, Section 91 of the Code - [SUMMARY OF ACT SECTIONS REFERENCED AND DISCUSSED BY THE COURT]
Fact of the Case:
The accused filed applications under Section 311 and Section 91 of the Code of Criminal Procedure, which were dismissed by the trial Magistrate. The accused then filed petitions under Article 227 of the Constitution of India read with Section 482 of the Code to challenge the dismissal orders.
Finding of the Court:
The Court found that the orders dismissing the accused's applications were justified and could not be altered or reviewed. The Court also held that the accused's subsequent application under Section 91 of the Code was an exercise in futility.
Issues: The issues revolved around the recall of orders under Section 311 and Section 91 of the Code, and the interpretation of Section 362 of the Code.
Ratio Decidendi: The Court emphasized that the power to alter or review a judgment is limited, and the accused failed to demonstrate any clerical or arithmetical error in the orders. The Court also clarified the limitations of Section 91 of the Code in the context of summoning and producing documents.
Final Decision: The Court dismissed the accused's petitions and directed the parties to appear in the trial Court.
Kuldip Singh, Judge. This judgment shall dispose of Cr.MP No.179 of 2013 in Cr.MMO No.8 of 2012 and Cr.MMO No.68 of 2012 as common and overlapping questions of law are involved in both the matters.
2.The relevant facts, in brief, are that respondent/complainant Ramesh Kumar filed a complaint under Section 138 readwith Section 142 of the Negotiable Instruments Act, 1881, against petitioner/accused Ram Krishan. In the complaint, accused moved an application under Section 311 of the Code of Criminal Procedure, 1973 ( for short ‘Code’) to recall for cross-examination complainant along with original agreement executed probably on 18.08.2010 in respect of apple crop of complainant purchased by accused.This application was dismissed by trial Magistrate on 05.12.2011. The accused filed Cr.MMO No.8 of 2012 under Article 227 of the Constitution of India read with Section 482 of the Code and assailed order dated 05.12.2011. Cr.MMO No.8 of 2012 was dismissed on 13.01.2012. The accused has filed Cr.MP No.179 of 2013 under Article 227 of the Constitution of India readwith Section 482 of the Code for recalling order dated 13.01.2012 passed in Cr.MMO No.8 of 2012.
3.After the decision of Cr.MMO No.8 of 2012, accused moved another application under Section 91 of the Code for summoning agreement in dispute. This application was opposed by the complainant. The trial Court on 27.03.2012 dismissed the application with the observation that the application has been moved on behalf of the accused just to linger on the proceedings and, therefore, the trial Court imposed costs ‘500/- to be paid by the accused to the complainant. The order dated 27.03.2012 has been assailed in Cr.MMO No.68 of 2012.
4.I have heard learned counsel for the parties. On behalf of petitioner/complainant, learned Senior Advocate has submitted that on 13.01 .2012, true, correct facts were not brought to the notice of this Court which led to dismissal of Cr.MMO No.8 of 2012 on 13.01.2012. The original agreement or its copy was never with the accused which is clear from the statement of complainant. He has submitted that party should not suffer for the mistake of the counsel or the order of the Court based upon such mistake of the counsel and, therefore, submission has been made for recalling the order dated 13.01.2012. In Cr.MMO No.68 of 2012, it has been argued by learned Senior Advocate that under Section 91 of the Code, the Court is competent to summon the agreement in question from the complainant in order to determine the real controversy. The Court below has misconstrued and misinterpreted the statement of complainant. The learned Senior Advocate has relied Rafiq and another versus Munshilal and another AIR 1981 SC 1400, Kunjuvarkey versus State of Kerala 2001 (2) All India Criminal L.R. 778, H.R.Shetty and others versus Titas Farnandes 2003 CRI.L.J. 1383, Trilok Singh versus State of Himachal Pradesh 2004 CRI.L.J.3134 (HP), State of Orissa versus Debendra Nath Padhi (2005) 1 SCC 568 in support of his submissions.
5. The learned counsel for the complainant has submitted that the accused moved an application under Section 311 of the Code which was dismissed by the trial Magistrate on 05.12.2011, Cr.MMO No.8 of 2012 in which order dated 05.12.2011 was assailed has already been dismissed. The order dated 05.12.2011 cannot be modified, reviewed, recalled in view of Section 362 of the Code. The accused moved another application under Section 91 of the Code to achieve the same purpose for which application under Section 311 of the Code was filed unsuccessfully, but said application has also been rightly dismissed by the trial Magistrate on 27.03.2012. The learned counsel for the complainant has defended orders dated 13.01 .2012 and 27.03.2012. In support of his submissions, he has relied Santosh Kumar Ganguly and another versus Registrar, Appellate Side, High Court, Calcutta and another AIR 1959 Calcutta 317, Smt. Sooraj Devi versus Pyare Lal and another AIR 1981 SC 736
